Australia: Land rights: Case Note: Berrima Gaol Case [2016] HCA 50

The High Court of Australia has written the final chapter in the
claim for land rights made by the NSW Aboriginal Legal Service
("ALS") over the Crown lands of the former Berrima Gaol,
finding in favour of the Crown. This decision brings to an end a
legal battle that has spanned 5 years – 2 years more than it
took convicts in irons to build Berrima Gaol prior to its opening
in 1839.

Berrima Gaol has a notorious history, being the site where John
Lynch, Australia's first convicted serial killer, was hanged in
1842, and where solitary confinement, in windowless cells too small
for many to lay upon the ground unfolded, would reputedly extend
for a year at a time. This facility has been closed a number of
times over its history, and it was the most recent closure in 2011
that sparked the land rights claim made by the ALS on 24 February
2012, pursuant to section 36(1)(b) of the Aboriginal Land Right
Act 1983 (NSW) ("the Act"), that would become the
subject of these proceedings.

Central to the argument of the ALS was that withdrawing
prisoners, revoking the proclamation of the "Berrima
Correctional Complex" under the Crimes (Administration of
Sentences) Act 1999 (NSW), and proposing alternate uses for
the, site amounted to the Crown no longer lawfully using or
occupying the land, thereby qualifying the land for claim under the
Act.

In order to succeed, the ALS needed to convince the Court that
revocation of the proclamation amounted to a discontinuance of
occupation. The ALS argued that this conclusion could be arrived at
by construing the terms "lawfully used" and
"occupied" narrowly, which they submitted was
appropriate in light of the remedial nature of the Act. This
argument had resonated with Kirby J in a
2008 case involving these same parties, although it was not
accepted by the majority of the High Court then. While favoured in
the joint dissenting judgment of Nettle and Gordon JJ, the argument
was not accepted by the majority in this instance either.

The majority agreed that the task of construing this provision
was simply one of identifying and applying the commonly understood
meaning of the words "used" and
"occupied" in ordinary parlance, and did not
require the Court to consider the purpose, remedial or otherwise,
of the legislation. In the opinion of the majority, acts by the
Crown of repair and maintenance, gardening and permitting the
public to enter and view the land satisfied the commonly understood
meaning of "used" and
"occupied".

Notably, on 10 August 2016, between leave to appeal being
granted and final written submission being made, the Corrections
Minister announced Berrima Gaol would reopen and would house 75
minimum security prisoners; doors re-opened on 27 September
2016.

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